President Obama Nominates Three to the NLRB

By Bill Leonard
4/11/2013

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President Barack Obama nominated two Republicans and a Democrat to serve on the National Labor Relations Board (NLRB). If confirmed, the three nominations, announced April 9, 2013, would bring the NLRB up to a full contingent of five members.

The president chose Republicans Harry Johnson, a lawyer with Arent Fox LLP in Los Angeles, and Philip Miscimarra, a partner in the labor and employment group of Morgan Lewis & Bockius LLP in Chicago, to serve on the board. He renominated NLRB Chairman Mark Gaston Pearce. Pearce’s current term on the board is set to expire in mid-August.

The nominations of Johnson and Miscimarra were seen by some as a peace offering to GOP leaders in Congress, who have vigorously opposed the president’s picks to serve on the politically volatile labor board. According to sources familiar with the situation, the White House hopes that the Senate will quickly confirm the three nominees as a bipartisan gesture.

For the past few years the NLRB has been a political lightning rod on Capitol Hill, and the House of Representatives passed several measures in 2011 and 2012 that specifically attempted to limit the board’s authority. The Senate, however, did not approve any of the measures.

Controversy has swirled around the board since Obama took office in 2009 and placed labor activist and union attorney Craig Becker on the board in April 2010 via a recess appointment. Becker’s appointment infuriated conservative leaders in Congress, and the president’s subsequent nominations to the board have been hotly contested and blocked in the Senate.

In early 2012, the president again used recess appointments to place Democrats Sharon Block and Richard Griffin and Republican Terence Flynn on the board. Flynn resigned three months later after an ethics flap.

A federal court declared in January 2013 that Block’s and Griffin’s appointments were invalid. The court agreed with arguments that the Senate was not in recess when President Obama placed them on the board. The White House immediately appealed the decision to the U.S. Supreme Court. During the appeals process, Block and Griffin have remained on the board.

Sources familiar with the issue say that with the new nominations the president hopes to end the political stalemate, which has hampered the labor board’s ability to conduct business and to make rulings required by the National Labor Relations Act (NLRA).

According to the NLRA, up to five members can serve on the board, and of those, only three can be members of the same political party as the president. Republican leaders in the Senate downplayed the bipartisan angle and emphasized that the president was merely fulfilling his legal obligations.

“As tradition and law requires, the president has properly nominated two Republicans to serve on the National Labor Relations Board. It is now the Senate’s role to exercise advice and consent on the nominees,” said Sen. Lamar Alexander, R-Tenn., ranking GOP member of the Senate Health Education Labor and Pensions (HELP) Committee, in a written statement. “As the Senate considers the nominees, the two individuals who were unconstitutionally appointed should leave, because the decisions in which they continue to participate are invalid.”

Democrats on the HELP Committee praised the president’s choices and vowed to push the confirmations of all the nominees forward.

“I am pleased that President Obama has put forth a bipartisan slate of nominees to fill positions on the National Labor Relations Board,” said Sen. Tom Harkin, D-Iowa, in a written statement. “It is of paramount importance to have a fully functioning NLRB to adjudicate disputes in a timely fashion. As chairman of the HELP Committee, I pledge to give fair and timely consideration to the president’s package of nominees, and I hope that my colleagues on the other side of the aisle will do the same.”

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